Friday, April 27, 2012

The Liestoppers forum has posted the deposition transcript
of Duke police first
sergeant Gary Smith. Smith’s name would be known to people who followed the
case very closely as the Duke employee who, in violation of FERPA, handed over
the lacrosse players’ keycard information to the DPD—and then, at least
according to the implied Duke version of events, initially didn’t tell anyone
what he did.

Perhaps Sgt. Smith needed to take a few of Grandma’s pills
before being deposed. Over the course of the session, he claimed that he could not recall:

·Whether he had ever worked with Mark Gottlieb
before the lacrosse case;

·From whom he “heard rumors” that Gottlieb was
biased against Duke students;

·The contents of former Duke PD office
Christopher Day’s report, from which Smith claimed to have initially learned
about the lacrosse case;

·Whether Officer Day changed his initial accurate
report (as he did, seemingly under pressure from higher-ups at Duke);

·Whether the case was initially a subject of
conversation in the Duke PD;

·Whether there was, in fact, any conversation about the case in the Duke PD in the early days;

·Whether he had ever supplied e-mails to the DPD;

·Whether or not he supplied prior reports about
the lacrosse players to the DPD;

·Whether Gottlieb requested from him the names
and contact information of the lacrosse players, or whether he supplied this
information on his own initiative;

·What role DPD captain
Phyllis Cooper had in his being appointed the “sort of” (his words) lead
investigator on the case (on that matter, he deemed his memory “wishy-washy”);

·How many investigators were employed in the Duke
PD at the time of the lacrosse case;

·Whether he had any conversations with Capt.
Cooper about the case;

·Whether or not Duke had previously declined to
exercise jurisdiction over alleged crimes in rental properties the university
owned;

·How he described, to his Duke superiors, the
information he supplied to Sgt. Gottlieb;

·What type of assistance he gave to Gottlieb
later in March, which Gottlieb had commented on in his typed “notes” (on this
point, Sgt. Smith claimed that too much time had passed for him to remember
what he did with Gottlieb on what was doubtless the biggest criminal case of
his career);

·Whether DPD officers entered into the “private
residence” of Duke students in Sgt. Gottlieb’s nighttime excursion into the
Duke dorms, when Gottlieb was trolling for information outside the presence of
the students’ counsel;

·Whether he gave to the DPD two additional
reports about the lacrosse players, as the Gottlieb notes claimed;

·Whether he ever had a conversation with Gottlieb
about what Crystal Mangum told the DPD;

·Whether or not he had ever supplied the DPD with
students’ FERPA-protected keycard information on any case other than the
lacrosse case;

·What basis he used to select the students whose FERPA-protected
keycard information he voluntarily turned over to the DPD;

·Whether he turned over Devon Sherwood’s FERPA-protected
keycard information to the DPD;

·Whether he counted how many names were on the
lacrosse roster;

·The nature of his conversations with his DukePD
superiors over whether FERPA applied to the keycard information;

·When he spoke to his DukePD superiors about
whether keycard information was FERPA-protected (he said it was simply too long
ago for him to remember this critical conversation);

·Whether he referenced the lacrosse case in his
conversation with DukePD superiors about whether keycard information was FERPA-protected;

·Whether in a late-March conversation with his
DukePD superiors he admitted that he had turned over the keycard information;

·Whether he asked his DukePD associate, Sgt.
Stotsenberg, not to reveal to anyone else that Smith had turned over the
keycard information (Smith had already confessed his violation to Stotsenberg,
who initially was the only DukePD officer to know of the keycard turn-over);

·Whether he had ever discussed with Stotsenberg
the possibility of a deposition in the lacrosse case civil suits;

·Whether any such conversations referenced the
keycard information.

Sgt. Smith also claimed not to have known at the time of the
allegations that:

The three captains voluntarily gave police
statements;

The three captains offered to take polygraph
tests;

Duke owned the house that the three captains
rented;

What Gottlieb was thinking when Sgt. Smith
informed Gottlieb that the keycard information was likely FERPA-protected;

In 2007, his superiors were discussing whether
he should be disciplined for turning over the FERPA-protected keycard
information.

When he occasionally shook free of his memory-induced haze,
Smith did make a few damaging admissions.

He admitted that he wouldn’t give the DPD social
security numbers of Duke students, because that’s “private” information. (Why
the FERPA-protected keycard info didn’t also apply under this standard Smith
did not say.)

In a question about his assisting Gottlieb
during his nighttime excursion into the lacrosse players’ dorms, he suggested
that he saw no problem, as a DPD officer, in helping the DPD ferret out Duke
students for questioning even though he knew these students were represented by
counsel. Then, however, under effective questioning, Smith admitted it would
not have been “proper” for Gottlieb to have entered the students’ dorm rooms as
part of his interrogation project.

Smith admitted that the Duke PD didn’t follow
its own procedure regarding the Gottlieb nighttime excursion; those procedures
require that “all requests for interviews of students by the Durham police will
be coordinated with [DukePD] Director Dean.” He offered no explanation as to
why procedures weren’t followed.

He admitted that he had volunteeredto supply Gottlieb with the FERPA-protected
keycard information.

He admitted that he made a conscious decision not to tell his DukePD superiors that he had
turned over the FERPA-protected keycard information—because, he admitted, he
was afraid he might get in trouble.

In his e-mail to Gottlieb suggesting that he get
a subpoena for the improperly turned-over keycard record, he admitted that he
blind-cc’d Duke PD director Dean, which he didn’t regularly do—suggesting that
the DukePD leadership was involved in the after-the-fact scheme to concoct a
legal rationale to turn over the keycard information. (He said he didn’t
remember who told him to blind-cc Dean.)

As to whether he had an obligation to inform the
Duke students whose rights he had violated about what he did, “It never occurred
to me.”

He had—and as of December 2011, still has—“no
opinion” about the “integrity” of the Nifong-Gottlieb investigation. Wow.

The “courts” found that the falsely accused
players “weren’t guilty, and that is sufficient for me.” In fact, of course,
the Attorney General exonerated the
players, and deemed them innocent,
not simply not guilty.

Nothing in the Smith deposition should give any confidence in the integrity of the DukePD.

Monday, April 23, 2012

One of the most important themes of the lacrosse case was
the almost complete lack of accountability among anyone not named Mike Nifong.
Professors who flagrantly violated the terms of the faculty handbook or student
bulletin (much less basic ethics)? Not punished, and in some cases even
promoted or offered better jobs. Reporters who appeared to see their job as
carrying Mike Nifong’s water (so as to better advance a politically correct
agenda) rather than pursuing the truth? Not punished, and in some cases even
offered new and more prestigious jobs. “Experts” whose performance revealed
their utter lack of expertise, at least if we define expertise as based on
facts? Not declared figures without credibility, and instead many continued to
be consulted on the very same topics about which they illustrated their
ignorance.

The effects of this non-accountability: those who engaged in
misconduct (or worse) in the lacrosse case are free to offer repeat
performances. Take, for instance, so-called sex crimes expert Wendy Murphy.
Fresh from being deemed not
merely an expert but an appropriate instructor for a Poynter seminar—even
after a Poynter representative was informed of Murphy’s fabrications—Murphy was
interviewed by AP education writer Justin Pope, who labeled
her a “victims’ advocate who has filed numerous Title IX complaints on
behalf of victims.”

The article focused on how universities should respond to
allegations of campus sexual assault. Without even mentioning Murphy’s comments about
the lacrosse case (the highest profile claim of campus sexual assault in the past decade)—much less her history
of fabrications when discussing the issue—Pope quoted Murphy as if her
views merited credibility. “Colleges must protect victims, [Murphy] says. That
means abandoning the fantasy they can make everybody happy by also offering
accused students the full due process rights they'd enjoy in a criminal trial.
‘You can't run a school that way,’Murphy said.
‘If every once in a while a school has to be sued at the cost of being fair to
all students, so be it.’”

Set aside the astonishing nature of Murphy’s statement in a
society that values (or at least professes to value) due process. Can anyone
imagine an AP reporter turning again for expertise to a scientist, or a
businessman, or an attorney exposed as a fraud in a high-profile case? And even
if in the highly unlikely event that the AP did so, is it imaginable that the
reporter would have not mentioned the grave doubt about the credibility of his
“expert”?

By the way, AP isn’t the only national news bureau that
could be faulted on the no-accountability standard. Late last year, Reuters hired
away Duff Wilson from the New York
Times to join the organization’s investigative team. Let’s hope Wilson’s
bosses steer him clear of criminal justice issues—at least when any amount of
skepticism of the prosecutor is warranted. Let’s also hope that Reuters employs
better fact-checkers than does the Times.

Another article for the non-accountability file: this
piece from the Times, penned by a
former national correspondent for the newspaper. How many readers of the
article, I wonder, had any idea that one of the (two!) Group of 88 members
quoted, Eduardo Bonilla-Silva, had views such
as these? While it’s not the job of the media to report every view a source
might have expressed, when interviewing an extremist on the topic of his or her
“expertise,” surely some requirement for context exists. Or, to phrase it differently, if most Times readers
knew that Bonilla-Silva had termed our country “gringoland” and the “United
States of Amerikkka,” and had conceded that even some of his own students
considered his course material to be “anti-white,” would they have paid any
attention to his comments in the article?

(Providing such context, it seems to me, should also occur
on the rarer occasions when media members interview extremists of the right. Perhaps
the best example is Tony Perkins, the head of an SPLC-designated hate group who
regularly appears on all three major cable networks without his hosts referencing
his extreme statements.)

Finally, a lawsuit update: the cases continue to inch their
way through the judicial system. There’s no word on the fate of Duke’s appeal
of the Beaty motion-to-dismiss ruling, which Judge Beaty has allowed to
indefinitely delay discovery. Duke, meanwhile, is battling attorneys for the
unindicted players, in the hopes of blocking any discovery from Duke’s p.r.
firms. Given that a central element of the unindicted players’ case is that
Duke violated their rights to protect the university’s reputation, this
information would seem relevant.

In the Ekstrand case, Duke has demanded a protective order
regarding discovery material—the university clearly doesn’t want any more
embarrassing Brodhead e-mails to be attached to Ekstrand motions.

And regarding the FERPA matter (the university’s
inexplicable decision to turn over FERPA-protected keycard information to the
authorities, and then to wait for weeks before informing the students or their
parents about what the university has done): ignorance is bliss appears to be
the Duke litigation strategy. During the discovery process, Dean Sue Wasiolek spent
more than six hours discussing the issue, yet—based on the filings—appeared to
claim that she knew little of what occurred. Duke’s comment: Wasiolek is the
university’s expert on the matter.

It’s good to know an apparent violation of the federal law to
protect student rights generated such concern among Duke’s upper
administration.

Saturday, April 07, 2012

Every so often, we see an event that raises eyebrows even by the upside-down standards of Durham legal culture. Take, for instance, the three legal motions filed late last week on behalf of false accuser and accused murderer Crystal Mangum. The motions weren’t filed by Mangum’s court-appointed attorney—who told the H-S that he knew nothing about them. Instead, they were ostensibly written on the accused murderer’s behalf by none other than “lay advocate” Sydney Harr, who has spent the past few years in a quixotic crusade to restore Mike Nifong’s law license. Even more strangely, Mangum’s court-appointed lawyer said that Mangum hadn’t authorized the motions’ filings—but each motion has a signature that appears to match Mangum’s.

In his motions, Harr, speaking of himself in the third person, admits that “he has not received formal legal training.” (But, perhaps, he once stayed at a Holiday Inn Express.) The three motions combine character assassination, bizarre interpretations of the law, and revisionist history of the lacrosse case to call for dismissal of the murder charges against Mangum; the recusal of Judge Smith from Mangum’s case; and a change of venue in the event the first two requests aren’t granted.

The motion to dismiss the murder charges is almost comically bad. Harr contends that Mangum shouldn’t face charges for murdering her late boyfriend, Reginald Daye, either because Daye’s doctors initially gave him a “prognosis for a full recovery” and thus are guilty of “medical malpractice” or because Daye’s family took him off life support after doctors said he had no chance of survival and thus engaged in a “hospital homicide.” (Harr, who identifies himself as a retired physician, also offers his medical opinion on Daye’s cause of death, even though he never treated Daye; indeed, he claims that Daye “might have even regained consciousness” had he remained on life support.) In perhaps the motions’ most bizarre line, Harr faults Duke Medical Center doctors for removing Daye from life support “without the consent or input from Defendant [Mangum].”

Why an accused murderer would have the right to make medical decisions for the person she allegedly murdered Harr does not reveal.

Applied nationally, the motion’s argument would free hundreds of convicted killers—anyone whose victim’s life wasn’t artificially sustained by life support. Harr doesn’t cite even one case to bolster his novel legal theory, but he does accuse the media of having “concealed” the fact that Daye had been on life support. Why the media would have engaged in this conspiracy of silence Harr does not explain.

Harr’s motions also devote considerable space to a claim of conspiracy on behalf of the Durham Police Department and the Durham DA’s office to invent and prosecute unsustainable charges against Mangum, because the “Defendant was the accuser in the Duke Lacrosse case.” Harr provides no explanation as to why the office of would-be lacrosse case second chair Tracey Cline or the Durham Police, which in 2006 spent months violating procedure after procedure in an attempt to prop up Mangum’s false charges, would have an incentive to invent criminal charges against Mangum. And, needless to say, he presents no evidence to sustain his . . . counterintuitive . . . theory.

His introduction of the lacrosse case does, however, provide Harr with an opportunity to relitigate the events of 2006. His motions, filled with gratuitous character assaults on the former Duke students, ooze with hatred for the falsely accused players (raising questions of whether the documents were prepared with some pro bono assistance from a certain disgraced ex-DA). Every so often, out of the blue, Harr throws in an attack on (of all people) Rae Evans.

Harr laments that Duke (who he himself has sued!) has faced “greed-driven lawsuits” because of what the motion alleges were $20 million settlements to the falsely accused players. (He provides no evidence for this figure, which he appears to have conjured from thin air.) And Harr, without citing any authority or case law, criticizes AG Roy Cooper for declaring the lacrosse players innocent, a move he attributes to the pernicious influence of Brad Bannon(!!). Cooper's actions, Harr suggests, were improper, since a declaration of innocence is “something that only a jury or a judge in lieu of a jury can do.” Of course, a jury delivers a verdict of “guilty” or “not guilty”; juries do not declare innocence. And what any of this revisionist history has to do with the motions’ ostensible topics Harr leaves for the reader to guess.

Perhaps temporarily forgetting the identity of his client, Harr veers from character assassination against the falsely accused lacrosse players to a claim that Nifong was wrongfully convicted of criminal contempt. Why? Because “as long as NIFONG believed what he was telling the court was true, even though it might not have been totally factually correct.”

This postmodern view of the truth might carry some way with the Group of 88 (did Harr seek to consult “law professor” Karla Holloway in his effort?) but has little bearing in the actual world of the law. As occurs throughout his motions, Harr cites no case law to sustain his novel legal theory. But he does employ it to suggest that Smith must recuse himself from Mangum’s trial.

The motions do reveal two new items: (1) that Nifong was “advised to drop prosecution of the Duke lacrosse defendants.” Harr doesn’t reveal who advised Nifong to take this course; and (2) that after her 2010 conviction for arson-related charges, Mangum was expelled from her graduate studies at North Carolina Central. Falsely accusing people of rape, apparently, doesn’t affect a student’s status at NCCU; conviction on misdemeanor arson charges does.

It’s hard to imagine that these motions will do Mangum any good. If, in fact, the false accuser didn’t authorize their filing, they could allow Harr to spend some time in jail for contempt. And WRAL reports that the State Bar is looking into Harr’s behavior.

Thursday, April 05, 2012

[Update: Friday, 6.11pm: Coincidentally, the H-Sreports on a Duke Law School forum about the Martin shooting. The analysis all seems on-point, especially on the peculiar nature of the Florida "stand-your-ground" law, though I'm far more skeptical about the likelihood of any federal prosecution than is Prof. Beale. That said: it's striking to note the contrast between the scheduling of this panel and the lack of such a Law School event while the lacrosse case was occurring. (There was an excellent law school panel several months after the exoneration.)]

Last week, Andrew Sullivan’s highly-trafficked Daily Beast blog ran a post with the above title; it consisted mostly of a letter from a Sullivan reader analyzing the George Zimmerman case.

The item captured my attention for three reasons: (1) It represented a break from the increasingly unhingedanti-Israel fanaticism that has come to characterize the Sullivan blog; (2) It clashed with Sullivan’s utter indifference to the abuses of Mike Nifong, the Duke faculty/administration, or the New York Times as the lacrosse case was occurring; (3) The argument made little sense.

Alas, the Zimmerman/lacrosse comparisons have become increasingly commonplace—in a particularly high-profile example, the linkage occurred this morning in a Shelby Steele op-ed in the Wall Street Journal. And unlike Sullivan, virtually all of these comparisons have come from the right side of the political spectrum. See, for instance, Rush Limbaugh terming the Zimmerman affair “the next Duke lacrosse case,” or a former Justice Department attorney describing the Zimmerman case as “Duke lacrosse, squared,” or Business Insider’s Michael Brendan Daugherty implying that the media’s mishandling of the lacrosse case explains why we should be skeptical of its Zimmerman coverage. (While avoiding any negative critique of Zimmerman’s character, Daugherty helpfully added that the falsely accused players were “pigs.”) A google search of “George Zimmerman” “Duke lacrosse” yields 17,000 hits. Among the few to reject the comparison—in an analysis with which I agree—was Steven L. Taylor at Outside the Beltway. But most of the other hits appear to attempt to link the two cases.

It’s worth making an obvious point: in the lacrosse case, nothing happened. In the Florida case, Zimmerman shot to death an unarmed teenager. Beyond that basic and overwhelming difference, the Zimmerman/lacrosse comparison is strained, almost apples-to-oranges, at best; and at worst a deliberate attempt to exploit (and tarnish) the students’ innocence as a shield to advance an unrelated ideological agenda.

Broadly speaking, the lacrosse case featured three differing loci of misconduct. First and most important, of course, was Mike Nifong, and those who worked at his behest (the Durham Police Department, DNA Security). Without Nifong’s serial violations of procedural norms, the case never would have developed; without his race-baiting demagoguery and improper public remarks, the case would have received less media attention. Nifong was also critical in exposing the hypocrisy of many who presumed guilt (the Group of 88, the Times, the state NAACP), since these were groups and people who never would have bent over backwards to defend prosecutorial misconduct in almost any other circumstance.

There’s no equivalent of Mike Nifong, or anyone resembling him, in any of the various prosecutor’s offices who have evaluated Zimmerman—calling into question the merits of any comparison between the two cases.

Second, the lacrosse case featured a litany of dubious behavior by members of the Duke faculty and administration—conduct that betrayed the academy’s traditional ideals of dispassionate evaluation of evidence in pursuit of the truth. The Group of 88 statement represented the low point of faculty misconduct, which also included in-class harassment, grade retaliation, indefensible statements from the university president (“whatever they did was bad enough”), and ignoring the plain language of the faculty handbook and student bulletin.

There’s no academic equivalent of the Group of 88, or Richard Brodhead, in the Zimmerman affair—calling into question the merits of any comparison between the two cases.

Third, the lacrosse case featured a torrent of questionable behavior from the media, ranging from the fact-challenged material in the New York Times and Herald-Sun to the guilt-presuming screeds of Nancy Grace, Wendy Murphy, and Selena Roberts. A central characteristic of the media mishandling of the case was the guilt-presuming crowd’s imperviousness to the unimpeachable evidence that undermined their assumptions. And so revelations of the negative DNA tests, or the Seligmann ATM video, or the Nifong-ordered lineup transcript, or the full statements of Kim Roberts and Mangum’s “driver” (which contradicted Nifong’s version of events) had virtually no impact on how the Times or the H-S or Grace or Murphy or Roberts approached the case. Elements of the media, along with many of those who purport to cover or analyze the news (Grace/Murphy/Roberts), were revealed to be not truth-seekers but closed-minded ideologues.

The Zimmerman case certainly has featured a rush to judgment from elements in the media, ranging from Al Sharpton to Michelle Malkin. And it’s also featured breaches of media ethics, ranging from NBC’s misleading editing of a 911 tape to make Zimmerman look like a racist to Business Insider’s using a misidentified photo from a neo-Nazi website to make Trayvon Martin look like a thug.

But there’s no comparison between the media response to the lacrosse and Zimmerman cases regarding evaluation of unimpeachable evidence. The three such examples in the Zimmerman case are the Zimmerman 911 tape, the video of Zimmerman at the police station, and (to a lesser extent) the audio analysis of a scream at the end of another 911 tape. Each of these pieces of evidence has been somewhat murky, although in general not helpful to Zimmerman. (The 911 tape features a huffing and puffing, armed Zimmerman improperly pursuing Martin on foot; the video shows Zimmerman with a gash on the back of his head, as his attorney had previously suggested, but no sign of the broken nose that his attorney also claimed he had suffered; the audio scream analysis hurts Zimmerman but suffers from not having any Martin audio for purposes of comparison.) In sharp contrast to what occurred in the lacrosse case, where the unimpeachable evidence always was clear and always tilted in one direction (the case was a fraud), there’s nothing from any of these pieces of evidence that would undermine or even seriously challenge a “rush-to-judgment” thesis against Zimmerman.

And so, whatever media misconduct has occurred in the Zimmerman case (and what has occurred has come from all over the ideological spectrum), it’s of a quite different type than what happened in the lacrosse case—calling into question the merits of any comparison between the two cases.

Indeed, if a reader were desperate to find some kind of comparison between the lacrosse and Zimmerman cases, the clearest one would seem to involve not Zimmerman but Martin. As Nifong’s case imploded, his defenders in the left-wing blogosphere retreated to character assassinations against the lacrosse players (the “they’re-not-saints” line of attack). At the time, my retort was that to my knowledge I had never taught any saints in my time as a college professor; and in any event the students’ alleged lack of saintly qualifications was irrelevant to the central questions of the case—explaining the misconduct of Nifong, the faculty, the media, and their associates.

In recent days, as Zimmerman’s legal peril has appeared to increase, his defenders (mostly, it seems, in the conservative blogosphere) have turned their sights on Martin and his character. (The outright “not-a-saint” line has even appeared from time to time.) Readers have had an opportunity to see Martin’s twitter feed, his e-mail account, and unflattering photos of him. This material might be interesting to those engaged in sociological studies of urban, 17-year-old African-Americans, but it’s of little relevance to the issue that will decide this case: whether Florida’s “stand-your-ground” law applies to a figure, like Zimmerman, who improperly initiated a pursuit that set into motion events for which he would later claim self-defense. The Florida law might well be elastic enough to protect Zimmerman—but if it does, whether Martin is a sinner or a saint will have no bearing on the outcome.

Of what overall relevance is the commentary of Limbaugh, or Steele, or Daugherty, or the figures like them? That in recent weeks we’ve seen hundreds of posts, columns, and radio bites—and mostly from people ostensibly sympathetic to the falsely accused students—linking Collin Finnerty, Dave Evans, and Reade Seligmann to a Florida man who killed an unarmed teenager. The prevalence of this comparison—a comparison, again, to a man who killed someone—provides yet another reminder of how significantly the misconduct of Nifong and the DPD harmed the falsely accused students’ reputations.

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About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review